First Hispanic Justice Confirmed to U.S. Supreme Court

By Robyn Kurland and Corrine Yu

Four months after being sworn in as the first African- American president, Barack Obama made history again on May 26, 2009 when he nominated U.S. Court of Appeals Judge Sonia Sotomayor to be the first Hispanic justice and only the third woman on the U.S. Supreme Court. After a relatively brief but intense confirmation process, on August 8, Sotomayor became the Court’s 111th justice.

Supporters of the nomination said that Sotomayor’s extensive legal experience, academic brilliance, and compelling personal story made her an inspiring choice, particularly among the fast-growing Hispanic population. But the sometimes rabid conservative opposition to Sotomayor’s appointment also signaled that this would be just the first of many heated battles to confirm the nominees of the Obama administration.

In announcing the nomination, President Obama declared, “When Sonia Sotomayor ascends those marble steps to assume her seat on the highest court of the land, America will have taken another important step towards realizing the ideal that is etched above its entrance: Equal justice under the law.”

While that may be true, her immediate impact on the Court may be limited. The retirement of Justice David Souter handed Obama the opportunity to promote Sotomayor, but not to change the prevailing conservative majority on the nine-member court. Although Justice Souter was nominated by a Republican president, toward the end of his 19-year tenure he often voted with the court’s more liberal justices on issues of concern to the civil rights community—frequently on the losing end of 5-4 decisions.

A dramatic shift in the court’s ideological balance is not expected unless Obama has the opportunity to replace one of the five conservative justices. But even with lowered stakes, both sides sought to use the nomination as an opportunity to frame the debate about judicial selection. Sotomayor had broad experience as a federal judge. In addition, her journey from modest beginnings to the pinnacle of her profession made her the epitome of the American dream.

Raised in a Bronx housing project, she went on to earn scholarships to Princeton University, where she graduated with honors, and Yale Law School, where she was a law review editor.

After serving as a prosecutor and partner in a law firm, she was nominated in 1992 by the first President Bush to the U.S. District Court for the Southern District of New York. With bipartisan backing from New York’s senators, Sotomayor was confirmed by unanimous consent.

In 1997, President Clinton nominated Sotomayor to the U.S. Court of Appeals for the Second Circuit. Despite her stellar record and a rating of “well-qualified” by the American Bar Association, Sotomayor’s nomination was delayed for more than a year by Senate Republicans, in part because of her potential as a Supreme Court candidate. With the help of Sen. Alfonse D’Amato of New York, a Republican who had supported her nomination to the district court, the Senate finally took up her confirmation in October 1998. The vote to confirm was 67-29, with 25 Republicans voting to confirm.

Throughout her career, Sotomayor has been characterized as a strong, no-nonsense judge who adheres to the rule of law. Early on, she gained a small measure of fame when she issued the injunction that ended the 1994 Major League Baseball strike and “saved baseball.” As an appeals court judge, she reviewed more than 3,000 cases and wrote 380 opinions with only three reversed by the Supreme Court.

A 2009 study by the nonpartisan Congressional Research Service concluded that Sotomayor’s “most consistent characteristic” as an appellate judge was her “adherence to the doctrine of stare decisis, i.e. the upholding of past judicial precedents. Other characteristics appear to include what many would describe as a careful application of particular facts at issue in a case and a dislike for situations in which the court might be seen as overstepping its judicial role.”

The civil rights community fully embraced Sotomayor and worked behind the scenes to support her nomination. The Coalition for Constitutional Values, co-chaired by The Leadership Conference on Civil and Human Rights, Alliance for Justice, and People For the American Way, led the effort and developed a 30-second TV ad to help introduce Sotomayor to the public. Wade Henderson, president and CEO of The Leadership Conference, testified before the Senate Judiciary Committee on behalf of the civil rights community in favor of Sotomayor’s appointment. The coalition also organized nationwide watch parties during the confirmation hearings and organized a pro-Sotomayor rally outside the Senate the day before the final confirmation vote.

Sotomayor’s moderate judicial record combined with the Democrats’ 60-seat Senate majority left little doubt that she would eventually be confirmed as an associate justice. But where the civil rights community found much to admire in her personal and professional history, many conservative opponents sought to portray her as a liberal judicial activist outside the mainstream of judicial thought.

In 2001, Sotomayor gave a speech on diversity in which she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” Conservatives seized on the statement as evidence of bias – or worse. Talk radio host Rush Limbaugh and former Republican House Speaker Newt Gingrich labeled her remarks “racist,” although Gingrich later expressed regret for the statement. Responding to the controversy, Sotomayor explained during her confirmation hearing that the remark was "a rhetorical flourish that fell flat," adding that "I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences."

Republicans also pressed Sotomayor about her vote as an appeals court judge to uphold the right of the City of New Haven, Conn., to toss out an employment test in which no Black firefighters qualified for promotion. Just before the hearing, the Supreme Court overturned the ruling on a 5-4 vote. Sotomayor said simply that she and the majority on the appellate court were “following precedent.”

The Senate Judiciary Committee voted 13-6 on July 28 to recommend Sotomayor to the full Senate. Only one Republican senator, Lindsay Graham of South Carolina, supported Sotomayor’s confirmation. Sen. Graham called Sotomayor “one of the most qualified nominees to be selected for the Supreme Court in decades,” adding that she “follows precedent and has not been an activist judge.” But few of Sen. Graham’s Republican colleagues agreed.

On August 6, the full Senate voted 68-31 to confirm Sotomayor, with only nine Republicans voting yes, 16 fewer than voted to confirm her to the appeals court. Sotomayor was sworn in two days later, in time to join the Court for arguments in a critical campaign finance case. The successful appointment of Sonia Sotomayor to the Supreme Court was clearly a major victory for civil rights and for a vision of American that is committed to equality, diversity and the rule of law. But the fact that a majority of Republicans opposed the nomination of a well-qualified centrist such as Justice Sotomayor left many civil advocates questioning whether they would find any Obama nominee acceptable.

Robyn Kurland is field manager for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. Corrine Yu is senior counsel and managing policy director for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund.

The Civil Rights Monitor is an annual publication that reports on civil rights issues pending before the three branches of government. The Monitor also provides a historical context within which to assess current civil rights issues. Previous issues of the Monitor are available online. Browse or search the archives